Office of Profit

Vaprumu Demo

Just as we, the Nagas, are getting (perhaps over) used to terms like unique, special or exceptional’, we seem to be heading towards a unique system of parliamentary democracy. This time our popularly elected representatives are attempting to do away with both the leadership of the ruling and leadership of the opposition, which is a dangerous threat to the existence of democracy. The reason being that both the leadership are holding office of Profit. Whereas the ruling leadership is attacked for holding offices’ of profit, other than the office of the Chief Minister, the leadership of the opposition is dissimilarly attacked as an office of profit (if at all the statutory position he holds is an office). Now that the controversial office of profit has assumed a national concern awaiting the decision of the Parliament, the question whether the offices the Chief Minister is holding constitute the office of profit or not will be determined later. Our concern here is whether the status given to the opposition leader constitutes the ‘office of profit’. The Constitution of India is silent on the role, position and privilege of the Opposition Leader and the Nagaland Legislative Member (Removal of Disqualification) Act, 1964 does not exempt the Opposition Leader from disqualification. But the fact remains that statutory recognition to the Opposition Leader to that of a Cabinet Minister since 1977 and same statute has been maintained in Nagaland Legislative AsserAb1y since 1964.

It is claimed by the English that the institution of opposition embodies the greatest contribution of the 19th Century to the art of parliamentary government Statutory recognition was accorded in 1937 when the practice of paying salaries to the Ministers the practice of paying salary in the same way to the Opposition Leader was layed down. In the democracy of the Westminster pattern, the official opposition has been accepted as equal and opposite to the Cabinet Government. That is, the position of Opposition Leader is forma1ized in stature.

The popularly known name of the ‘Shadow Prime Minister’ or the ‘Shadow Government’ or the ‘Shadow Formation’ aptly brings out the importance of the opposition in parliamentary system of Government. Gerhard Kunz, a member of German Bundestag says

‘Parliament in the material sense usually means the opposition’. Opposition is the life blood Parliamentary government. The Janata Govemment in the year 1977 recognized indispensability of the Opposition by recognizing the Leader of the Opposition Y.B. Chavan, who led the Congress Parliamentary Party. He was paid a salary from the exchequer and was given the status of a Cabinet Minister. The Congress I ruling party did not abandon this practice and it is well trenched now.

As mentioned earlier in the latter part of Para 1, the Constitution of India has not defined the role or position of Opposition Leader both of the Parliament and the State Legislature. But it has categorically defined the ‘office of profit’ for both the Parliament and the State Legislature under Article 102 (1) (a) and Article 191 (1) (a) respectively. It may also be noted here that the disqualification for membership of a State Legislature as laid down in Article 191 are analogous to the disqualification laid down in Article 102, relating to membership of Parliament. Here the analogous implies similarity or equivalent, by which we interpret that what is applicable to Parliament applies to State Legislature as well. We have, only one parliamentary system in India and not differently in the Central and in the State.

Eminent expert on the Indian Constitution have thoroughly delved with the subject matter embodied in Article 102 and Article 191 and relevant comments and opinion are extracted here for Our purpose of understanding the constitutional provisions pertaining to the disqualification of membership. Before we proceed further for details it will be most pertinent to understand the basic principle behind Article 102 (1) (a) and, Article 191 (1) (a) of the Constitution of India. The legal view point of D.D, Basu is quoted here for our reference; ‘the object of enacting Article 102 (1) (a) and Article 191 (1) (a) is that there should be not conflict between the duties and interest of the elected members and that such elected members can carry on freely and fearlessly his duties without being subjected to ‘any kind of governmental pressure (emphasis ours). These Articles are intended to eliminate the possibility the conflict between duty and interest so that the purity of the Legislature is unaffected’.

Three legal implications of these Articles to determine whether’ an ‘office’ is an ‘Office of profit’ to constitute disqualification are discussed below:

1. Office of profit: (a) in order to attract disqualification under these Articles the person must hold an ‘office’ and that office must be an ‘office of profit’ , (b) ‘Office means a position or place to which certain duties are attached, ( c) in order to constitute an ‘Office’ there must be a permanent substantive position which exist independently of the holder of the office; (d) an ‘office of profit’ is an office which is capable of yielding a profit or pecuniary gain, (e) ‘profit’ mean any pecuniary gain(f) it need not be a payment in money, (g) the truth test for determining whether a person holds an office of profit depends upon the degree of control the Government has over it .

2. Under the Government ;( a) in order to attract disqualification the ‘office of profit’ must be held under the Government (constitutional experts have repeatedly stressed the term ‘under the Government’), (b) the expression ‘office of profit under the Government’ in this Article is wider than the expression ‘post or service under Government) (c)- it is the power of appointment and removal and not the source of remuneration paid that constitute the test of office being held under the Government or not .
3. Other than an office… holder; By this is rneant the State Legislature is competent to lift the disqua1ification in the case of the person even though his office would otherwise come within the meaning of Office of profit’.

Then who is not a holder of office of profit and which not an office of profit? Firstly a person shall not be deemed to hold an office of profit other the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. Secondly office under a statutory body is not an office under then Government. Thirdly states which has passed such laws declaring certain offices to be offices the holding of which will not disqualify its holder for being a member of Legislature of the state.

A careful observation of the comments mentioned above still  give us further questions as to whether the opposition leader is holding the ‘Office of profit under the government’. (1) Can we say the Opposition Leader is holding an ‘office of profit under the Government because he is paid the salary from the State exchequer and provided the facilities equivalent to that of a Cabinet Minister? (2). When a statutory body is not an office under the Govemment, can the Opposition Leader, who is accorded statutory recognition by Parliament, attract disqualification? (3). If that of the Opposition Leader is an Office is it existing independently of the holder of the Office? (4). what are certain duties attached to him besides his responsibilities as Opposition Leader? (5). finally what is degree of control by Government and how is he accountable to Government for holding the ‘office of profit’?

These are serious questions the ordinary publics like the Legislature to clarify.

There is a big difference between the terms ‘office of profit’ and misuse of office ‘for profit’. From the description given the Opposition Leader has relentlessly pursued the Speaker for hiking of his salary and allowance equivalent to that of a Cabinet Minister. It is best known to the Speaker whether the Opposition Leader was entitled such provision. In the first place whether the Speaker has accepted the appointment of the Opposition Leader ,and whether the status of Cabinet Minister was duly acknowledged by the Legislature. If the Opposition Leader is not entitled of such provision, what he has done its sheer misuse ‘of his position, as is done by almost all the leaders. In which case he could have been charged and, penalized under relevant laws of the land. If the office of the Opposition Leader was, exempted by the Nagaland Legislative Members (Removal of disqualification) Act, 1964, perhaps the pioneering legislators at that point of time had adopted the statutory recognition given to Opposition Leader by Parliament. Incidentally at the time progenitor of the Congress Party, the NNO, was in power but the regional Opposition Leader or the Party did not raise objection. Again when S.C. Jamir was the Chief Minister of Congress Government he also held the Chairmanship of States Sports Council; but the regional opposition party did object. Today the regional party-led Government is in power and the opposition Congress Party after many years of ruling is struggling to assert the identity of Opposition Leadership. Whatever the outcome is, this a healthy fight for progress and development. The fight between factions is destructive in nature but the fight between legislators, in this context is constructive in nature.